Thursday, June 28, 2012

Attorney General Jim Hood issued an opinion on the concealed carry law on June 14. Mr. Hood ruled a concealed carry license does not allow one to openly carry a gun. The gun must be fully concealed. Here is the opinion.

36 comments:

Anonymous
said...

I'm not that smart to figure out his logic, but, does that mean, "if you have a concealed license, you cannot openly carry a weapon" at all? In other words, once you have a concealed weapon permit, you must carry it completely concealed or you are breaking the law?

What happens when you go to use your weapon to defend yourself from a criminal, at that point it is no longer concealed, so, are you breaking the law again? Regardless if the weapon is discharged, it is no longer concealed and is a crime?

Hood didn't write the statute; whoever did wrote a clumsy statute, but it says what it says and creates the problem cited above; however, under the doctrine of "necessity" you wouldn't be guilty when revealing the weapon for self defense.

I question whether this opinion really fits in the description of the AG's power to issue opinions, found in Miss. Code Ann. Section 7-5-25. Although law enforcement is included in the state officials who may seek an opinion, the statute seems to limit the AG's power to the interpretation of statutes that govern the performance of their duties, not the general criminal law:

The Attorney General shall give his opinion in writing, without fee, to the Legislature, or either house or any committee thereof, and to the Governor, the Secretary of State, the Auditor of Public Accounts, the State Treasurer, the Superintendent of Public Education, the Insurance Commissioner, the Commissioner of Agriculture and Commerce, the State Geologist, the State Librarian, the Director of Archives and History, the Adjutant General, the State Board of Health, the Commissioner of Corrections, the Public Service Commission, Chairman of the State Tax Commission, the State Forestry Commission, the Transportation Commission, and any other state officer, department or commission operating under the law, or which may be hereafter created; the trustees and heads of any state institution, the trustees and heads of the universities and the state colleges, the district attorneys, the boards of supervisors of the several counties, the sheriffs, the chancery clerks, the circuit clerks, the superintendents of education, the tax assessors, county surveyors, the county attorneys, the attorneys for the boards of supervisors, mayor or council or board of aldermen of any municipality of this state, and all other county officers (and no others), when requested in writing, upon any question of law relating to their respective offices.

When any officer, board, commission, department or person authorized by this section to require such written opinion of the Attorney General shall have done so and shall have stated all the facts to govern such opinion, and the Attorney General has prepared and delivered a legal opinion with reference thereto, there shall be no liability, civil or criminal, accruing to or against any such officer, board, commission, department or person who, in good faith, follows the direction of such opinion and acts in accordance therewith unless a court of competent jurisdiction, after a full hearing, shall judicially declare that such opinion is manifestly wrong and without any substantial support. However, if a court of competent jurisdiction makes such a judicial declaration about a written opinion of the Attorney General that applies to acts or omissions of any licensee to which Section 63-19-57, 75-67-137 or 75-67-245 applies, and the licensee has acted in conformity with that written opinion, the liability of the licensee shall be governed by Section 63-19-57, 75-67-137 or 75-67-245, as the case may be. No opinion shall be given or considered if the opinion is given after suit is filed or prosecution begun.

Complete and utter bullshit interpretation of the statute--reading in requirements that aren't there.

I wonder who Chief Bobby Joe Redneck of the Ellisville Police Department wants to hassle. Someone with a ccw is open-carrying and the Chief wants to screw with him. That's the only reason he would ask for an opinion on such a silly issue.

Keep in mind that Chief Robert Bruce Russell is the tool that was running around the Capitol in a command jacket looking like he was Chief of DC Metro, lobbying against the immigration bill.

This opinion directly contradicts the opinion to the Oktibbeha County Sheriff in 1998. In that opinion there was no distinction between concealed and concealed-in-part and a permit holder who carried their gun sticking out of the back of their pants could not be charged with anything.

Do a search for 1998 WL 831819 on the Attorney General's website to see the opinion.

In my opinion, the ruling by Hood is not a proper reading of the law. The fact that the legislature worded the statute to allow "concealed" weapons should be interpreted to apply to all concealed weapons. The attorney general is adding words to the law that the legislature didn't put in.

We are now in the same position Florida and Texas were in that an accidental flashing of the weapon (bending over, wind blows open the jacket, etc.) would open the permit holder to brandishing charges and illegal carrying of a "partially concealed" weapon.

Why yes, and thanx for axing. I would like to add that a lawyer's post including the words 'bull shit' and referring to a law officer as 'red neck' should be a clue that the lawyer is either intoxicated or not worth listening to (or both).

To respond to Curt: I don't think the AG opinion power should be used to construe criminal statutes at the request of a law enforcement officer. That isn't the point of the opinion statute, and it's a dangerous threat to liberty.

there is/was also a statute (curt help me out here) in mississippi/federal that if you feel that your life is threatened you may carry a concealed weapon with out a permit... my life is always threatened within jack-u-stan city limits. I was actually going to use this defense once as i carried a gun without permit, got caught and was preparing defense. charges were dropped before i could defend.

Perhaps one of you legal eagles could help clarify, but I was under the impression that the legal precedent had been set that when you carry a holstered weapon, the holster constitutes a modicum of "concealment". Therefore, even if you open carry with a holster, you need a conceal carry license. Would that not apply in this case too?

I was always told you could carry a weapon, if it was not concealed, in your car. Since times became so dangerous I got a permit to carry. This was so I could have a gun if my life was threatened, and could carry it in my purse so I could have it with me. I didn't plan to carry a gun in a holster, but if I did I would have to wear a coat to conceal it, and it would be okay? In other words, previously you could not have a concealed weapon, if in the car it had to be in plain view. Now you have to have a weapon concealed, even in your car? Can I let my permit expire and carry a concealed weapon? Hood's Opinion is now the law? Please be patient. I'm confused, and clearly this is a "need to know".

The reason you can carry a gun without a permit in your car is because in Mississippi your car is an extension of your home (which has already been clarified in an earlier post) bottom line is if you are in a reasonable situation and something happens and you defend yourself with a gun with or without a permit, not neccessarily legally or illegally. I believe Mississippi courts give you a pass as long as self defense is presented and approved.

On a related note, citizens need to know that is is NO LONGER illegal to have bullets in the gun under your seat while traveling the Natchez Trace. Up until recently you could not be held liable by the feds for having a gun in your vehicle as long as it was NOT LOADED. What the hell good was an unloaded pistol?

Also, workers need to know that your employer CAN NOT prohibit you from having a firearm in your vehicle parked on the employer's property unless the parking lot is gated and entry/exit from the lot are controlled to prohibit public access. In other words, no matter what your employer posts on the walls of the lobby and breakroom, you, as an employee, are free to have your pistol, revolver, shotgun, rifle, bow or knife in your vehicle. Of course this doesn't apply to those worksites where firearms are prohibited by state law.

The right of every citizen to keep and bear arms in defense of his home, person, or property, or in aid of the civil power when thereto legally summoned, shall not be called in question, but the legislature may regulate or forbid carrying concealed weapons.

Meople, the condensed version is that the state statute makes it a defense to the charge of carrying a concealed weapon (w/o a permit), if the accused's life has been threatened. That means that it is a defense you get to present in court *after* Chief Bobby Joe Redneck arrests you for it.

8:55, don't feel bad about being confused. Most people are confused after reading something drafted by Twitty's office.

Regardless of whether you have a permit, you can carry in your car, concealed or unconcealed.

According to Twitty's opinion, you cannot "open carry" a firearm on your person (unless at your home, car or business etc.). If you choose to follow Twitty's interesting interpretation, then yes you would need to conceal any firearms on your person under clothing (unless at your home, in your car or business).

Such a simple statute, but leave it to Twitty and a dumb redneck bully cop to muck it up.

That's not accurate. Hood's opinion stated nothing about "open carry" of a firearm. It stated that the concealed carry provision only authorized for the fully concealed carry of pistols/revolvers.

He cites 97-37-1 which disallows carrying "concealed in whole or in part" several things. Yet this seems to allow one to carry fully open, the full length rifle or shotgun. It also is ambiguous with Article 3, Section 12 of the Constitution which says "The right of every citizen to keep and bear arms in defense of his home, person, or property, or in aid of the civil power when thereto legally summoned, shall not be called in question, but the legislature may regulate or forbid carrying concealed weapons." It doesn't say the legislature can regulate weapons concealed "in part".

Article 3, Section 12 also appears to provide for one to open carry arms in defense of their person or it would not have delineated concealed carry.

Additionally, his last paragraph is incorrect in that it suggests one can obtain a concealed deadly weapon permit and not just a "pistol or revolver," since he says "Thus, it is illegal to carry the weapons described in Section 97-37-1(1) without securing a license"

Yet this seems to allow one to carry fully open, the full length rifle or shotgun

Let me correct this. I meant to say it appears to allow the carrying of fully concealed full length rifles and shotguns.

The way that law is written, you can't carry the listed deadly weapons concealed in whole or in part "(1) switchblade knife, metallic knuckles, blackjack, slingshot, pistol, revolver, or any rifle with a barrel of less than sixteen (16) inches in length, or any shotgun with a barrel of less than eighteen (18) inches in length, machine gun or any fully automatic firearm or deadly weapon, or any muffler or silencer for any firearm, whether or not it is accompanied by a firearm...."

That seems to allow one to openly carry a rifle with a barrel longer that 16" or a shotgun with a barrel longer that 18".

8:08, my use of the term "open carry" may have been vague. I used that term to describe any carrying that was not completely concealed, as Twitty addressed in his opinion.

I also didn't consider long guns in my response. 8:55 mentioned carrying in her purse, and I deduced that she was referring to carrying a handgun (though I'm sure kel-tec or bullpup can make a rifle that fits in a purse). My response was also based on the fact that 8:55 said she was a permit holder.

This is an absurd interpretation of the statute. Before the "CC" statute, if you OPENLY carried a pistol in a holster, it was a violation of Mississippi law. Why? Because that part of the pistol covered by the holster, made it "concealed" and IN VIOLATION of Mississippi law. It's a stupid opinion and I do not think a court would be persuaded...but who wants to antagonize law enforcement who might take this opinion as "gospel"!

Only those lacking in a certain area would want to carry a weapon in view, even concealed in view.

And AG opinions are oomplete bull crap. Most law enforcement officers in this state (and many justice court judges) did good to graduate high school or get a GED. The AG is their god and will do whatever the AG says. Too bad we don't have an AG with a conscious. (And that is not a misspelled word.)

When the first ccw bill came out, before most of you know,it was presented as the Gunslinger Bill and was sponsored by Mr Stone Barfield who lost reelection because of his support for this bill according to the way it was covered by the press. I was there in the Capitol when the hearings were ongoing. Mr Barfield had his own pistol lying on a table and called almost every major law enforcement officer of the state and asked each of them if that weapon was concealed. They all answered "yes" because according to court decisions you must be able to see more than 50% of a gun in order for it to not be concealed. That is a physical impossibility. You can never see more than 50% of anything, the other 50% is not visible to you. Mr Barfield would ask each law enforcement officer why they considered the weapon concealed and they would state that they could only see 50% of it, the side up or facing them but could not see the 50% facing away from them. I wonder if Mr Hood has done any research on these court cases?

So, I have a question. Sec. 12 of the Bill of Rights of the Constitution of the State of Mississippi says "The right of every citizen to keep and bear arms ... shall not be called in question, but the legislature may regulate or forbid carrying concealed weapons." So if the State Constitution guarantees the right to bear arms, and authorizes the legislature to regulate or forbid only their concealment--how did carrying them openly become illegal? I mean, there are only two ways to carry and if the legislature is empowered only to regulate or forbid concealment, it seems to me that open carrying must be Constitutionally protected. Or is this a phantom right ignored by the MS legislature and yielded through apathy or other inaction by the citizenry?

I wonder when Mississippi chose to change the definition of "concealed". An item concealed "in part" is not, by definition, concealed. An item that's concealed must be unrecognizable or completely out of sight.

Besides, can those officers, referenced in the aforementioned post, point to the law that states that the definition of concealed was changed to 50%?

It's time for a legislative change... The MS Supreme Court Ruled you had to have a concealed carry permit if any portion of the firearm is concealed, as in a holster. Now AG says, put it away, and never bring it out. This trend must end now, it's time for MS to join the 4 other states that are "constitutional carry" states. Another words you are a free citizen, that is enough, carry open or concealed, NO Permit Required, after all why do free citizens need to ask for permission?

I think the law was written with a few errors. They need to be corrected. My original reason to acquire my CCP was due to having my ex-son-in-law placed in jain in Texas for seven years due to child molestation of my granddaughter. He threatened to kill my wife and I when he was released. I traveled around a lot carring large sums of money and valuable parts for the company I worked for.

To 5:27 I agree. It would also be the cheapest way to cut violent crime in the city of Jackson. Reference Arizona's gunslinger laws and there numbers of violent crime per capita (minus the Mexican druglords or Mexicans for that matter)

Mississippi is a right to carry state by the mississippi constution. The sherriff in ellisville has no right to bring this up the people needs to kick him out and yes who is he trying to harrass, many years ago one mississippi supreme court judge made his own decision that even though the state const says mississippi is a open carry state that a pistol in the holster is considered concelled his personal thoughts. The sherriff's and one game warden the went so far as to say when your rifle was hanging on a gun rack in your truck that where the rack was covering the rifle was considered concealed. People wake up please we need to appeal and take back our rights change these are unite and no accept these kind of Opinions and thoughts from elected or appointed officals who are suppose to protect our constutional rights not take them away. How many know the Castle Law. How many know your lagal rights under Mississippi law against a law offical.

I agree with you Anonymous, did not get my ccp to hide my gun. If I was a merchant, I would rather see the gun on someone entering my store rather than them have it hidden. Partially concealed or fully concealed is the grey area in the law. I am fully prepared to defend my right to openly carry in a holster.

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